2016 PLP 1 (YLRN)

S. 42

Suit for declaration

Co-sharer, remedy against

Family or private arrangement

Scope

Suit property was joint and no official partition had been effected between the co-sharers

Co-sharer who was in exclusive possession of joint property could not be permitted to alienate or transfer such property to damage the right of other co-sharers at the time of regular partition

Family or private partition could not be equated with formal partition

Joint owner should be deemed to be interested and had right in each and every inch of joint property

Impugned judgments and decrees were illegal and were not sustainable which were set aside and suit was decreed

Revision was allowed in circumstances. [Paras. 11, 12, 13, 15, 16 and 18 of the judgment] Aurangzeb through L.Rs. and others v. Muhammad Jaffar and others 2007 SCMR 236; Muhammad Idrees and others v. Muhammad Perviaz and others 2010 SCMR 5 and Samandar Khan v. Khan Hakim 2011 CLC 899 ref. Sardara and 4 others v. Muhammad Khan PLD 1998 CLC 1509; Khurshid Anwar Jaleel and 6 others v. Muhammad Hafiz Mirza and 14 others 2003 CLC 1695; Ali Gohar Khan v. Sher Ayaz Khan and others 1989 SCMR 130; Atta Muhammad v. Sahibzada Manzoor Ahmad and others 1992 SCMR 138; Muhammad Abid and 2 others v. Nisar Ahmad 2000 SCMR 780; Noor Muhammad and others v. Allah Ditta and others PLD 2009 SC 198 and Zulfiqar and others v. Noor Muhammad 2002 CLC 711 rel.

O. I, R. 9

Mis-joinder and non-joinder of party

Effect

Plaintiff could not be non-suited on the basis of mis-joinder or non-joinder of the party. [Para. 14 of the judgment] Mst. Janat Bibi v. Saras Khan 2011 SCMR 1460 and Abdul Qayyum v. Mst. Goher Begum and others 2011 CLC 284 rel.

Co-sharer who was in exclusive possession of specified portion of joint property could not be dispossessed unless regular partition was affected. [Para. 12 of the judgment]

S.115

Revisional jurisdiction of High Court

Scope

High Court while exercising revisional jurisdiction was not required to re-appraise evidence unless courts below had acted in disregard of law which resulted into miscarriage of justice. [Para. 17 of the judgment] Nazir Ahmad and others v. Muzaffar Hussain 2008 SCMR 1639 rel. JUDGMENT MUHAMMAD DAUD KHAN, J.--Through the instant revision petition, the petitioner has assailed the judgment and decree of learned Civil Judge-II, Karak dated 27.03.2010 and that of Additional District Judge-I, Karak dated 22.06.2011 whereby former dismissed the suit of the petitioner/plaintiff while the later upheld the judgment and decree of the trial court.

2. Succinct but necessary facts giving rise to the instant petition are that the petitioner/plaintiff instituted a suit for declaration and permanent injunction to the effect that the suit property situated in khasra No. 784 measuring 03 Kanal and 16 Marlas is the joint ownership of the parties. The petitioner claims that the parties are legal heirs of one Khan Gul. He further alleges that the disputed property is unpartitioned uptill now, and the respondent/defendant illegally carries out construction over it. The respondent/ defendant was time and again asked to not interfere and made construction over suit land but respondent/defendant have refused the same, resultantly filed the suit for his redressed.

3. On appearance, the defendant opposed the stance of plaintiff by filing written statement. On divergent of pleadings of the parties, the learned trial Court framed nine issues along with relief.

4. Both the parties produced their evidence as they wished. On conclusion of trial, after hearing the arguments of the learned counsel for the parties the learned trial Court dismissed the suit of petitioner/plaintiff.

5. Aggrieved by the said judgment and degree, the petitioner/plaintiff preferred an appeal, which failed.

6. Both the learned trial court and Appellate Court dismissed the suit of petitioner/plaintiff vide impugned judgments and decree dated 27.03.2010 and 22.06.2011 respectively, mainly on three grounds.First, that the suit property through family settlement partitioned and co-sharer are in possession of their respective shares according to said suit.Secondly, that the plaintiff's suit is bad for non-joinder and mis joinder of the necessary parties as all the co-sharers in the suit property were not made a party in the suit, thirdly that the suit for injunction against co-sharer cannot be maintainable as plaintiff/petitioner seeks possession without partition.

7. Dissatisfied the judgments and decrees of both the subordinate Courts, the petitioner assailed the same through this revision petition.

8. Haji Muhammad Zahir Shah, the learned counsel for the petitioner contended that the suit property is joint one and not regularly partitioned as such, the respondent/defendants have got no right to change the nature of it from agriculture to residential one. He further contended that the dismissal of the suit on the basis of mis-joinder and non-joinder is utterly against the statutory law. "Sardara and 4 others v. Muhammad Khan" (PLD 1998 SC 1509), "Khurshid Anwar Jaleel and 6 others v. Muhammad Hafiz Mirza and 14 others" (2003 CLC 1695), "Ali Gohar Khan v. Sher Ayaz Khan and others" (1989 SCMR 130).

9. On the other side Mr. Shahid Qayyum Khattak, the learned counsel for the respondents opposed the arguments of learned counsel for the petitioner and supported the concurrent judgments of the subordinate courts. He argued that a family arrangement was arrived at between the parties and the suit land had been given to the respondents as a result of said settlement. Furthermore being a co-sharer the petitioner has got no cause of action against the respondents. The learned counsel for the respondents further contended that as both the learned courts below have recorded concurrent findings on material issues in the case, thus in the constant view taken by the superior courts of the country from time to time, this court in revisional jurisdiction neither required nor supposed to interfere in concurrent findings. He relied on case titled "Aurangzeb through L.Rs and others v. Muhammad Jaffar and others" 2007 SCMR 236, "Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5 and Samandar Khan v. Khan Hakim 2011 CLC 899.

10. I have given my consideration to the respective arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.

11. It appears from the record the suit property is joint property of the owners. The revenue record also transpires that the nature of land is agriculture. According to evidence produced by the parties the official partition of said land has not been affected between co-sharer through metes and bounds.

12. In such like cases a co-sharer, who is in exclusive possession of specified portion of joint property though cannot be dispossessed unless a regular partition but it is also well settled law that a co-sharer, even in exclusive possession of joint property cannot be permitted to alienate or transfer such property which might change its joint character or otherwise change the nature of the property to damage the right of the other co-sharer are effect the right of co-sharer at the time of regular partition take place. The Hon'ble Supreme Court of Pakistan in the case of Ali Gohar v. Sher Ayaz and others"(Supra) dealing with the case of joint ownership of the property observed that: "In case of joint immovable property, each co-sharer deem to be interested in every inch of subject matter irrespective of quantity of his interest. One co-sharer cannot be allowed to act in a manner which, constitute an invasion on the right of other co-sharer. Co-sharer in possession of portion of joint property cannot change nature of property in his possession unless partition take place by metes and bounds." The Hon'ble Supreme Court followed the said view in the case of "Atta Muhammad v. Sahibzada Manzoor Ahmad and others (1992 SCMR 138). In other case "Sardara and 4 others v. Muhammad Khan" (PLD 1998 SC 1509),while maintaining the judgments of Additional District Judge and learned High Court, the Hon'ble Supreme Court was pleased to hold that: "The judgment of the learned Additional District Judge, which was affirmed in revision by the learned High Court, is based on correct appreciation of the documentary evidence adduced by the respondent and does not call for interference by this Court, it was, therefore, rightly held by the learned Additional District Judge and learned High Court that since the land in dispute was joint and had not been partitioned between the parties, the appellant could not unilaterally cut and sell the trees growing or raise any construction thereon." This view has been consistently followed by the superior courts in plethora of cases like "Muhammad Abid and 2 others v. Nisar Ahmad" (2000 SCMR 780), Khurshid Anwar Jalil and 6 others v. Muhammad Hafiz Mirza and 14 others" (2003 CLC 1695). "It is not to be confused that family arrangements are arrived at by the members of joint family with a view to neutralize the hostility and ill -feelings among themselves by avoiding the formal partition proceedings before revenue authority or before the Court. The private partition does not determine the legal rights but simply indicates the broad property among themselves. Moreover, it is well settled that a co-owner in a joint property is not entitled without assent or acquiescence of the other co-sharers to exclude portion of the joint property or to select a particular portion for the purpose of partition. He is required to seek the partition of the landed property as a whole." "It is by now settled principle of law that a plaintiff cannot be denied relief on the ground of mis- joinder of non-joinder of a party. Even otherwise, it is the duty of Court to do justice and not to knockout the parties on technical grounds." This principle was also adopted by this Court in the case titled "Abdul Qayyum v. Mst. Goher Begum and others" sited 2011 CLC 284.

15. Both the learned courts below accepted and admitted that disputed property is a joint one and no regular partition has been taken place between the parties till now. It is also admitted that the property is agriculture one but according to both the courts, the injunction cannot be granted against co-sharer and learned courts of the view the suit is not maintainable. I am afraid and disagree with the assumption of the learned courts below as every joint owner shall be deemed to be interested and has right in each and every inch of joint property. If the instant view is given the weight, then a stronger co-sharer, having possession of a larger part may alienate or change the nature of the property and say the weaker and poor co-sharer may file a suit for partition and till its decision, the stronger co-sharer may alienate the same or change the character and through his adversary into a ditches and barren lands by taking commercially valuable land abutting on road side or more fertile lands, such course cannot be allowed under the principle of equity and justice. The reliance can be taken from Atta Muhammad's; Sardara's and "Khurshid Anwar Jalil's cases (supra) and "Zulfiqar etc. v. Noor Muhammad (2002 CLC 711).

16. The judgments and decrees of both the subordinate Courts are illegal and not sustainable in the eye of law, liable to be set-aside.

17. The other contention of the learned counsel for the respondents is concurrent findings of the subordinate court cannot interfere by this court in revisional jurisdiction, is not tenable as no doubt this Court while exercising revisional jurisdiction, is not required to enter upon the reappraisal of evidence but here the learned Courts below have acted in disregard of law and well settled principals relating to appraisal of evidence as a result both the Courts reached patently to a wrong conclusion resulting into miscarriage of justice, therefore, when the element of injustice cause to the petitioner is apparent on record then certainly findings recorded by them are not immune from the corrective process of the High Court under Section 115, C.P.C. Reliance can be taken in the case titled Nazir Ahmad and others v. Muzaffar Hussain 2008 SCMR 1639.

18. In the light of above observations this petition is accepted, both the judgments and decrees of the learned two Courts below are set aside, the suit of the plaintiff is decreed with no order as to cost. ZC/104/P Revision allowed.